Per Diem Same, Expenses Vary for Lawmakers

Of the 112 members of the state Legislature, no one lives closer to the Capitol than Democratic Sen. Peter Wirth.

Wirth’s district includes the Capitol, and his home on Santa Fe’s east side is less than two miles away. He has few expenses in attending a session of the Legislature.

Now let’s look at the case of freshman Republican Rep. David Gallegos. No member of the Legislature lives farther from the Capitol.

Gallegos is from Eunice, in the far southeastern corner of the state, more than 320 miles from Santa Fe. He has lots of expenses in attending a session of the Legislature, including the cost of a hotel room.

Here’s the issue:

Under the state Constitution, all legislators receive the same per diem, or daily payment, for attending a session. Wirth gets the same $154 per diem that Gallegos does.

As compensation for the jobs they do, the same per diem for all legislators is fair. What is unfair is that lawmakers are expected to cover their expenses with per diem, and some legislators have far more expenses than others.

Here’s another inequity that results from just paying lawmakers a per diem:

Under Internal Revenue Service rules, a legislator who lives 50 or more miles from the Capitol doesn’t have to pay taxes on per diem because of an assumption that all the per diem was spent on expenses, while a lawmaker who lives within 50 miles has to pay income taxes on any per diem not actually spent on expenses.

That means a lawmaker from Albuquerque, about 60 miles from Santa Fe, doesn’t have to pay a dime in taxes even if he commutes daily from his home to the Legislature and doesn’t spend all his per diem on expenses.

Gallegos says he favors a more equitable system but adds, “With the privilege (of serving in the Legislature) comes cost. I knew that coming in.”

Lawmakers also receive mileage reimbursement, but reimbursement is limited under the Constitution to one round trip from their homes per session. If Gallegos wants to go home to visit his family during the 60-day session, he has to pay the freight.

“What really hurts is the one-trip” limit on reimburse-ment, he says, adding that it costs him about $100 in gas to make a trip home in his pickup.

New Mexico legislators receive a per diem for each day of the session and for attending meetings required by legislative committees, most of which are in Santa Fe, when the Legislature isn’t in session.

The per diem was $5 when New Mexico became a state in 1912, but it was increased several times with voter approval.

In 1996, voters approved a constitutional amendment that tied the per diem rate to the IRS per diem rate for Santa Fe for purposes of expense allowances. That’s how we got to the current $154 per diem.

In addition to paying a per diem to lawmakers, taxpayers also make a contribution to their pension plan, which provides generous benefits to those who qualify with a minimum of five years of service.

Arizona pays legislators both a salary and per diem, but the per diem is less for lawmakers who live in Maricopa County, where the Capitol is located.

Wirth says maybe New Mexico needs to do something like that: pay a salary to lawmakers and make expense reimbursements that reflect actual expenses.

That would require voter approval of a constitutional amendment.

The state Department of Finance and Administration reports per diem paid to legislators on miscellaneous income forms filed with the IRS, and this week it released copies of the forms for tax year 2012.

The average total per diem for lawmakers, including those who served only part of the year, was nearly $11,000.

Democratic Sen. Richard Martinez collected more per diem last year than any other lawmaker, a total of $20,922.

Martinez lives in Española, about a half-hour drive from the Capitol.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to ABQjournal.com/letters/new to submit a letter to the editor.